Telecommunications Law Update

Transcription

1 Alabama Association of Municipal Attorneys 2016 Spring Municipal Law Conference Birmingham, April 1, 2016 Update Gail A. Karish Best Best & Krieger LLP

2 Agenda Industry overview Recent legal developments in: Wireless Cable/Video Broadband What to watch for The State Bar of California 87th Annual Meeting, September 11-14, 2014, San Diego

3 Industry Overview 4 Major Wireless Networks Verizon, AT&T, Sprint, T-Mobile 95% wireless subs market share (2013) 3 Major Telephone Networks AT&T, Verizon, CenturyLink (former Qwest) 90+% landline access line market share 4 (soon 3) Major Cable Networks Comcast, Time Warner Cable, Cox, Charter 75.5% cable subs market share (2013) Charter and Time Warner merger The State Bar of California 85th Annual Meeting, October 11-14, 2012, Monterey

4 Services Markets - Video Source: The State Bar of California 85th Annual Meeting, October 11-14, 2012, Monterey

5 Services Markets - Voice Source, AXVoice, The State Bar of California 85th Annual Meeting, October 11-14, 2012, Monterey

6 Services Markets - Broadband Source: The State Bar of California 85th Annual Meeting, October 11-14, 2012, Monterey

7 Industry Trends Broadband is the anchor wireline network (not telephone, not cable) Competition is in services, less so in networks Wireless data demand drives increases in capacity (not so much coverage) Wireless deployments of distributed antenna systems (DAS) and small cells in public rights of way to fill gaps/lower operating costs The State Bar of California 85th Annual Meeting, October 11-14, 2012, Monterey

8 Wireless The State Bar of California 85th Annual Meeting, October 11-14, 2012, Monterey

9 Wireless Facilities Siting Federal law (and sometimes state law) puts constraints on local authority over placement of wireless facilities. Federal rules reach not only traditional cell towers but also small cells and DAS installed in the public rights of way. A favored constraint is to impose shot clocks and deemed granted remedies to speed up processing and approvals. So far these constraints have not been applied to any actions taken acting in a proprietary capacity. Challenge for localities is to serve the community s land use goals while complying with federal laws (and state laws) that limit local authority. The State Bar of California 85th Annual Meeting, October 11-14, 2012, Monterey

10 Key Fed l Statutes / Orders / Cases 47 USC 332(c)(7) 47 USC 1455(a) (Sec. 6409) 47 C.F.R Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B), 24 FCC Rcd (2009) In the Matter of Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, 29 FCC Rcd (2014) City of Arlington, Tex. v. FCC, 668 F.3d 229 (5th Cir. 2012), aff d 133 S. Ct (2013) Montgomery County et al v. FCC, 811 F.3d 121 (4 th Cir. 2015) The State Bar of California 85th Annual Meeting, October 11-14, 2012, Monterey

11 Section 332(c)(7) Applies to personal wireless service facilities (includes commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services) Generally preserves local zoning authority, but imposes five limitations: Locality shall not unreasonably discriminate among providers of functionally equivalent services Locality shall not prohibit or effectively prohibit provision of PWS Locality must act on request within reasonable period of time Denials must be in writing and supported by substantial evidence No regulation of RF except may require applicant to demonstrate compliance with FCC rules 11 11

12 Section 6409(a) (47 U.S.C. 1455) Applies to eligible facilities requests any request for modification of an existing wireless tower or base station that involves (A) collocation of new transmission equipment; (B) removal of transmission equipment; or (C) replacement of transmission equipment. State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station. 12

13 FCC Rules 47 CFR Tower Structure built for sole or primary purpose of supporting FCC licensed or authorized antennas and associated facilities. Base Station Equipment associated with wireless comm. service Antennas, coax, backup power supplies any structure other than a tower that at time of application was supporting or housing the above (walls, rooftops are support structures). 13

14 FCC Rules 47 CFR Existing A constructed tower or base station that has been reviewed and approved under the applicable zoning or siting process or under another State or local process, except towers not in a zoned area when built, but lawfully constructed (nonconforming uses?). 14

15 FCC Rules 47 CFR Substantial Change (Height/Width) Towers other than Right of Way (ROW) towers, modification: Increases height by more than 10% or 20 feet whichever is greater; or Appurtenance added protrudes from body of structure more than 20 feet or width of tower at pt. of attachment. All other support structures, modification: Increases height by 10% or 10 feet, whichever is greater; or Appurtenance added protrudes more than 6 feet. Height measured from facility as it existed as of date of passage of Act (2012). 15

16 FCC Rules 47 CFR Substantial Change (other) for towers and base stations in ROW: New equipment cabinets if there are none, or involves placement of cabinets 10% greater in height or overall volume than other cabinets associated with structure. All other eligible support structures: Installation of more than four equipment cabinets. It entails any excavation or deployment outside of site. It would defeat concealment elements of the eligible support structure. 16

17 FCC Rules 47 CFR Key Notes: Does not preempt generally applicable safety and health codes. Does not apply to proprietary (non ROW) property of community. Reaches all wireless facilities including Wi-Fi deployments. Reaches DAS and Small Cells. 17

18 FCC Wireless Shot Clocks Rules adopted in 2009, clarified in 2014 By adopting explicit timelines that apply to different types of wireless facilities applications, FCC has: created a presumption of what is a reasonable time to act under 47 USC 332(c)(7) implemented Sec. 6409(a) s requirement that local governments shall approve certain applications 18

19 Categories of Applications Eligible facilities requests (6409) FCC created very broad definition Collocations typically adding facilities to existing sites Other applications principally new sites An application that is NOT eligible under Section 6409 may still be subject to Section 332(c)(7) and the other shot clocks. 19

20 FCC Wireless Shot Clocks Timelines: 60 days for eligible facilities requests 90 days to process collocation applications 150 days for other siting applications Shot Clocks exist independently of any stateimposed clocks other shot clocks are not preempted 20

21 Shot Clocks shot clocks within the Shot Clocks 30 days to review application and issue incompleteness notice 10 days to review responses and issue further incompleteness notice 21

22 Shot Clocks operate in five important ways: 1. Clock starts to run when application submitted, not when deemed complete 22

23 2. Issuing a timely notice of incompleteness (30 days), or further notice (10 days) will toll the shot clock 23

24 3. Locality must specify the code provision, ordinance, or other publiclystated procedure that requires the missing info. 24

25 4. Shot clocks run regardless of local moratoria 25

26 5. Shot clocks apply to DAS and small cells, if the facilities are used for personal wireless service 26

27 FCC Shot Clock (Remedies) Under federal law, remedies for missing the deadlines are: Non-6409 Applications: presumption that agency has not met the reasonable time requirement of Sec. 332(c)(7). Applicant has 30 days to sue. Locality may present evidence to rebut presumption Applications: deemed granted remedy. 27

28 Sec Remedy Applicant notifies locality of deemed grant. Locality has 30 days to file appeal in court after notified. Grounds for appeal: Application did not meet Section 6409(a) mandatory approval criteria, or Would not comply with applicable building codes or other non-discretionary structural and safety codes, or For other reasons is not appropriately deemed granted. 28

29 Recent Sec. 332(c)(7) Cases T-Mobile South, LLC v. City of Roswell, 135 S.Ct. 808 (2015) Denial and substantial evidence need not be in same document, but must be essentially contemporaneous. Global Tower Assets, LLC v. Town of Rome 810 F.3d 77 (1 st Cir. 2016) Final action triggering appeal rights under Sec. 332 requires completion of all admin. appeals (suggests reasonable time for action shot clocks stop after final action) Not binding on other circuits but expect similar arguments Impact: potentially harder to meet shot clocks 29

30 How to Comply with the Shot Clocks Processing existing applications Can you complete that review within the applicable Shot Clock? If not, is the carrier willing to enter into a tolling agreement? Is denial possible/advisable? Are there standard conditions that apply if the application is capable of being deemed granted? What public review process is required? Will you issue reasons with decision? Will you have time to complete all appeals? 30

31 How to Comply with the Shot Clocks What you should be doing now before you receive another application Discuss with staff and elected officials Consider designating a point person for wireless applications Ensure applications are time stamped Ensure all contacts with applicants are being documented 31

32 How to Comply with the Shot Clocks When you receive an application Is the application complete? If not, prepare notice of incompleteness that includes cites to code provision, ordinance, or other publiclystated procedure within 30 days of receipt Respond to any submittals within 10 days Which shot clock applies? Calendar the deadlines Ensure other reviewers are aware 32

33 How to Comply with the Shot Clocks What you should be doing as soon as possible Review your application forms Do they solicit the info you need to determine whether shot clock applies and which one? Do you need to revise/create checklists? Standardize letters or forms for incomplete applications? Review your code Does it substantively comply with applicable law? Should its procedures for reviewing applications be revised? 33

34 DAS and Small Cells The State Bar of California 85th Annual Meeting, October 11-14, 2012, Monterey

35 DAS and Small Cells FCC/industry estimates: More than 37 million small cells will be deployed by million DAS nodes will be deployed by One study projects that aggregate small-cell capacity will overtake macrocell capacity by Source: Cell-FINAL.pdf The State Bar of California 85th Annual Meeting, October 11-14, 2012, Monterey

36 DAS and Small Cells Applications should be reviewed closely Applicants may or may not be wireless carriers May be (or claim to be) state-authorized telephone companies with CPCNs seeking to install utility pole May not plan to use utility pole for their wires May not have any immediate plans to place antennas (no customers) May be planning wireless or wireline backhaul (or both) Applications may go to Public Works or Engineering, not Planning May not have CPCN that allows installation of wireless facilities Do you have authority to require a franchise, collect a franchise fee? If installing antenna on existing pole, who owns it and who can collect rent for use? The State Bar of California 85th Annual Meeting, October 11-14, 2012, Monterey

37 Cable The State Bar of California 85th Annual Meeting, October 11-14, 2012, Monterey

38 Cable Franchising 47 USC 521 et seq. establishes certain parameters, including Ban on exclusive franchises/unreasonable refusals Franchise fee capped at 5 % of gross revenues Public, Educational and Government (PEG) fees used for capital expenditures Rate regulation/charge regulation Franchise renewal rights Transfers shot clock The State Bar of California 87th Annual Meeting, September 11-14, 2014, San Diego

39 Cable Franchising Avoided state cable franchising in Alabama BUT subject to FCC s Section 621 Orders Sec. 621 of Cable Act (47 USC 541) prohibits: exclusive franchises and unreasonable refusals to award competitive franchises FCC issued orders in 2006, 2007 and st Order upheld on review Alliance for Community Media v. FCC, 529 F.3d 763 (6th Cir. 2008) 2 nd and 3rd orders now on appeal in 6th Circuit, Montgomery County, MD et al v. FCC The State Bar of California 87th Annual Meeting, September 11-14, 2014, San Diego

40 Section 621 Orders 1 st Order Focused on new entrants to video services market (telcos) Shot Clock for grant or denial of application: 90 days for applicants with authority to be in PROW 180 days for other applicants Failure to meet deadline = interim franchise deemed temporarily granted Incidental fees in addition to 5% franchise fee OK: payments for bonds, security funds, letters of credit, insurance, indemnification, penalties or liquidated damages. Not OK: attorney fees, consultant fees, application or processing fees that exceed the reasonable cost of processing the application, acceptance fees, non-cable related free or discounted services, in-kind payments Build Out Not OK: several including build out beyond telco footprint The State Bar of California 87th Annual Meeting, September 11-14, 2014, San Diego

41 Section 621 Orders 1 st Order (cont d) PEG requirements OK: Capital costs (operating costs count against franchise fee) Not OK: requiring more PEG channel carriage than incumbent I-Net requirements Not OK: duplicative, payments in lieu of I-Net that would never be build OK: additional functionality would be reasonable through financial support or actual equipment to supplement existing I-Net facilities Most favored nation clauses not ok because tend to impose same requirements on new entrant as incumbent Telco mixed use networks Not OK: control over Title II non-cable services or facilities or any attempt to regulate a telephone company s entire network beyond the provision of cable services The State Bar of California 87th Annual Meeting, September 11-14, 2014, San Diego

42 Section 621 Orders 2 nd Order Many findings from 1 st Order extended to incumbents Findings re what costs, fees, and other compensation to LFAs are subject to 5% cap Findings re PEG costs (not PEG channel capacity; not I-Nets) Findings re mixed-use networks Incumbents could use MFN clauses to reduce their own otherwise valid franchise obligations The State Bar of California 87th Annual Meeting, September 11-14, 2014, San Diego

43 Section 621 Orders 3 rd Order 3 rd Order reconsidered aspects of 2 nd Order Incidental fees in addition to 5% franchise fee Extended to cable-related requirements as well as non-cable related requirements Affirmed rulings on mixed use networks and MFNs Has serious implications for franchise fees (potential set off of value of free services) 2 nd and 3 rd orders now on appeal, Montgomery County et al v. FCC (6 th Circuit) FCC brief due March 30, 2016 The State Bar of California 87th Annual Meeting, September 11-14, 2014, San Diego

44 Other FCC Proceedings Charter-TWC-BHN merger Approval anticipated shortly Will have important conditions Set top boxes NPRM (MB 16-42) Opportunity to purchase boxes rather than rent Diversity of Programming Inquiry (MB 16-41) Opportunity to educate re value and challenges faced by public access, educational and governmental channels Legal alert summarizing the two proceedings: The State Bar of California 85th Annual Meeting, October 11-14, 2012, Monterey

45 Broadband The State Bar of California 85th Annual Meeting, October 11-14, 2012, Monterey

46 Broadband 2015 Redefinition FCC s 2015 Broadband Progress Report - now 25 Mbps down/3mbps up Was 4 Mbps/1 Mbps (standard set in 2010) 55 million Americans (17%) lack access to broadband 50%+ rural Americans lack access to 25/3 broadband 2016 Funding Lifeline on March 30 FCC agenda Financial support for broadband Internet access service for qualifying low income customers Defined as 10/1 broadband The State Bar of California 87th Annual Meeting, September 11-14, 2014, San Diego

47 Broadband 2015 Reclassification (with heavy forbearance) Certain mass market wireline and wireless broadband Internet access services ( BIAS ) now interstate telecommunications service subject to Title II regulation (Protecting and Promoting the Open Internet, 30 FCC Rcd 5601; order on appeal USTA v. FCC, D.C. Circuit). (no unbundling of last-mile facilities, no tariffing, no rate regulation, no cost accounting no new federal taxes or fees...) 2015 Preemption FCC bars state and local requirements from which FCC has forborne, promising to preempt any state action inconsistent with FCC s regulatory regime for broadband Separate FCC Order preempted TN and NC laws intended to restrict municipal broadband (City of Wilson, 30 FCC Rcd 2408; order on appeal Tennessee et al. v. FCC, 6th Circuit). The State Bar of California 87th Annual Meeting, September 11-14, 2014, San Diego

48 Broadband 2015/2016 Local Revenues FCC Footnote: we do not believe that the classification decision would serve as justification for a state or local franchising authority to require [a cable operator] to obtain an additional or modified franchise or to pay any new franchising fees (quoting letter from cable association that no add l fees appropriate as broadband equipment that adds no appreciable burden to the rights of way. ) Congress: permanent moratorium on tax on Internet access, H.R. 644, signed into law by Pres. Obama The State Bar of California 85th Annual Meeting, October 11-14, 2012, Monterey

49 What to Watch For More federal (or state) laws limiting local authority over wireless Opportunities for funding broadband service More competition in over the top services Threats to franchise fees, PEG Alternative ROW authority for cable operators Telecom Act reform The State Bar of California 85th Annual Meeting, October 11-14, 2012, Monterey

50 Questions? Gail A. Karish Best Best & Krieger 300 South Grand Avenue 25th Floor Los Angeles, CA Tel: (213) Fax: (213) Website: The State Bar of California 85th Annual Meeting, October 11-14, 2012, Monterey